Heathcote v Police
[2022] NZHC 2704
•19 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-286
[2022] NZHC 2704
BETWEEN BARRY HEATHCOTE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 October 2022 Appearances:
D P Nairn for Appellant
S E Arnerich for Respondent
Judgment:
19 October 2022
JUDGMENT OF LANG J
[on appeal against issuing of protection order]
This judgment was delivered by me on 19 October 2022 at 12.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Kayes Fletcher Walker, Manukau
HEATHCOTE v NEW ZEALAND POLICE [2022] NZHC 2704 [19 October 2022]
[1] Mr Heathcote pleaded guilty in the District Court to charges of injuring the complainant, his former partner, with intent to injure her and threatening to kill. On 14 July 2022 Judge S D Otene sentenced Mr Heathcote to 16 months imprisonment.1 The Judge also made a protection order in favour of the complainant.2
[2]Mr Heathcote appeals against the issuing of the protection order.
Background
[3] Mr Heathcote had been in an “on again off again” relationship with his former partner for approximately four years. On 17 November 2021 they became involved in an argument after consuming alcohol. This led to Mr Heathcote committing a series of assaults against his partner. In a sentence indication given on 30 March 2022 the Judge described these as follows:
[4] The allegations are that Mr Heathcote and the complainant with whom he has had a relationship of approximately four years were drinking in a public place on an afternoon last November. Mr Heathcote became upset with the complainant, grabbed her by the hair [and] slammed her head into a timber bench causing bleeding from her head. Next as she stood to leave, he approached her aggressively said amongst other things “I am going to kill you” and whilst saying that elbowed her in the side of her face. When she next ran to a bus stop on the other side of the road it is said that Mr Heathcote followed her, threw her to the ground, stomped on the left side of her head and pushed the right side into the ground simultaneously saying “I will kill you, you bitch. I will fucking kill you, you bitch.” Further injuries suffered were facial bruising, soft tissue swelling and superficial laceration to the forehead and right knee.
Grounds of appeal
[4] Mr Heathcote does not take issue with the Judge’s description of the offending nor the sentence of imprisonment imposed on the two charges. However, he contends the Judge ought not to have issued a protection order for the following reasons:
(a)The Judge did not refer to the possibility that he might issue a protection order when he gave the sentence indication.
1 New Zealand Police v Heathcote [2022] NZDC 13274.
2 At [11].
(b)The protection order was not necessary for the protection of the complainant.
(c)There was no evidence before the Court that the complainant did not object to the making of a protection order.
The sentence indication
[5] In the sentence indication given on 30 March 2022, the Judge did not refer to the possibility that he might issue a protection order if Mr Heathcote entered guilty pleas to the charges. Mr Nairn submits on Mr Heathcote’s behalf that it was wrong in principle for the Judge to make an order that had not been heralded during the sentence indication.
[6] I do not accept this submission. The sentence indicated was one of imprisonment. The Judge did not depart from this at sentencing. A protection order is not a “sentence” other than for the purposes of an appeal.3 As counsel for the respondent points out, this is consistent with s 123B(3) of the Sentencing Act 2002 (the Act), which provides that a protection order may be made “in addition to imposing a sentence”.
[7] The position may have been different if the Judge had indicated that he would not issue a protection order. In that event Mr Heathcote would have entered his pleas on the expectation that no protection order would be made at sentencing, and the Judge would have departed from the indication if he issued a protection order at that time. However, that did not occur. The Judge made no reference during the sentence indication to the possibility that a protection order might be issued. The absence of any reference to this issue could not have created any expectation on Mr Heathcote’s part that a protection order would not be imposed at sentencing.
[8]I therefore do not consider this ground of appeal has any merit.
3 Curzey v Police [2020] NZCA 145, [2020] NZFLR 233 at [32]-[37].
Was a protection order necessary for the protection of the complainant?
[9] Mr Nairn advances this ground on the basis that there was no evidence before the Judge to suggest a protection order was necessary for the protection of the complainant. He opposed the issuing of a protection order at sentencing once the prosecutor suggested such an order was appropriate.
[10] Section 123B of the Act permits the court to issue a protection order in the following circumstances:
123B Protection order
(1)This section applies if—
(a)an offender is convicted of a family violence offence; and
(b)there is not currently in force a protection order against the offender made under the Family Violence Act 2018 for the protection of the victim of the offence.
The court may make a protection order against the offender if—
(a)it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and
(b)the victim of the offence does not object to the making of the order.
(3)A protection order may be made under this section in addition to imposing a sentence or making any other order.
(4)An order may be made under subsection (2) even though family violence proceedings have been filed by the victim of the offence against the offender, and those proceedings have not yet been determined.
(5)If an order is made under subsection (2) in the circumstances described in subsection (4), the family violence proceedings, in so far as they relate to an application for a protection order against the offender, end.
[11]The Judge dealt with the issue as follows:4
[11] Finally, the prosecutor seeks the issue of a protection order pursuant to s 123B, the victim indicating prior that she sought the making of that order. It is resisted on behalf of Mr Heathcote on the basis that it is not necessary. Necessity turns upon a reasonable subjective fear of future violence and if
4 New Zealand Police v Heathcote, above n 1.
established, whether or not there are countervailing features to weigh against the making of the order. Given the nature of the offending, reasonable fear of future evidence is established; given that Mr Heathcote himself identifies rehabilitative needs, I do not consider there are countervailing factors weighing against the making of the order. Accordingly, I make a protection order in favour of the victim, [redacted], pursuant to s 123B of the Sentencing Act 2002.
[12] Mr Nairn acknowledges the threshold for a protection order is relatively low. However, he points out that Mr Heathcote had been in prison for nearly eight months when he was ultimately sentenced. Despite this fact the Judge relied upon a victim impact statement prepared at the time of the offending. This was signed by a police officer and not the complainant.
[13] Mr Nairn also points out that to the best of his knowledge, Mr Heathcote and the complainant are no longer in a relationship, although they may meet from time to time on the street. He suggests the Judge needed to be in possession of further, and more up to date, information before he could reasonably decide it was necessary to make a protection order in the present case.
[14] I acknowledge it may have been preferable for the Judge to seek updated information on this issue, given the lapse of time since the offending and the preparation of the victim impact statement. However, the nature of the present offending suggests a predilection to violence by Mr Heathcote against his partner. It was a sustained attack involving multiple forms of violence and it resulted in injuries that are plainly visible in photographs taken of the complainant a short time later.
[15]Secondly, the victim impact statement contained the following passages:
I find it hard to get away from him [Mr Heathcote] because he is the type of person who does not take no for an answer.
…
EMOTIONAL HARM
I am really scared that he might find me and hurt me again. I am so scared of him, so so scared.
I think he’s going to kill me, I think that because that’s what he said to me.
He said “I will kill you and will kill myself and we’ll go together and we will be dead together”.
I believe what he says to me cos he don’t fuck around eh, he will do what he says, he’s dangerous.
This has me so anxious you know, I have kids and that.
[16] Thirdly, Mr Heathcote has three previous convictions for offending involving family violence. These involved charges of threatening to kill and/or cause grievous bodily harm (2013), threatening behaviour (2009) and wilful damage (2009). None of these convictions relate to the present complainant but they do establish a pattern of offending in a family violence context.
[17] Finally, the present offending did not involve an encounter between strangers. Mr Heathcote and the complainant had been in a relationship sporadically for a period of four years. This gave rise to the possibility that they would be together again in the future notwithstanding the events giving rise to the present charges.
[18] Against that background I do not consider it surprising that the Judge found it appropriate to issue a protection order. This ground of appeal fails as a result.
Did the complainant object to the making of the order?
[19] As will already be evident, s 123B(2)(b) provides that a court may only make a protection order if the victim of the offence does not object to that occurring. Mr Nairn submits there was nothing before the Judge to enable him to conclude this requirement was satisfied.
[20] This submission overlooks the fact that the Judge’s sentencing remarks expressly record that the prosecutor had advised him that the victim had indicated prior that she sought the making of a protection order.5 It is not possible for me to go behind this observation. If Mr Nairn did not accept what the prosecutor told the Judge he needed to raise it at the time so that, if appropriate, further enquiries could be made. In the absence of any dispute at the time, the complainant’s wishes as conveyed to the
5 Above n 1, at [11].
Judge by the prosecutor clearly suggest the complainant did not object to a protection order being made. This ground of appeal fails as a result.
Result
[21]The appeal against the issuing of the protection order is dismissed.
Lang J
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